Can’t Win’em All

Case 1 - AVELA v. Estate of Marilyn Monroe

     This is a case dealing with publicity rights, which are protected at the state level and are different in each state. This is no different for the publicity rights of the deceased and the laws of the state in which you died govern your post mortem publicity rights. (Butler, 2007, p. 128) Apparently the estate of Marilyn Monroe has been sending cease and desist letters over the years to several companies and in the most recent case sent one to AVELA, a company licensing images to a manufacturing company, Silver Buffalo that slaps the images of celebrities on cups, key-chains, etc. Now AVELA is suing the estate of Monroe for "tortiously interfering with its contracts."  (Gardner, 2012)

     Further, AVELA claims that the Monroe estate has already been dealt with by federal judges in both California, and New York who "previously determined that Monroe's estate was estopped from claiming an enforceable post mortem right of publicity." (Gardner, 2012) Consequently, New York is also where Marilyn Monroe died, so any ruling regarding her post mortem publicity rights here should be paid close attention.

     Here, is my opinion regarding post mortem publicity rights in the case of a celebrity such as Marilyn Monroe. I believe there should be some sort of mechanism that provides royalty to the estate where another seeks to profit from the likeness of the deceased. I would agree there should be a limit on time, or number of generations that control this right, however, and it should generally apply where the estate actually holds copyright for the image used.

Case 2 - Black Keys Sue Pizza Hut and Home Depot

     It is hard to imagine being the artist or manager who is going about their normal everyday business when something in the background, say television noise, catches your attention, and it is one of your songs a company is using without your permission or previous knowledge. I imagine that even more shocking is the irresponsibility; some may say stupidity, of those who know better. Now imagine that you are The Black Keys and it happened twice, in instances not so far apart in time.

     Both Home Depot and Pizza Hut are being sued for infringement by The Black Keys for using parts of their songs in advertisements without any permission whatsoever. According to an article by Anthony McCartney on Billboard.biz, the two songs in question were both featured on the duo's most recent album titled "el Camino" that has since sold almost 900,000 copies. The band is seeking both damages and asking that the ads be taken down permanently. (McCartney, 2012)

     I say that if it is in fact blatant infringement, then good for The Black Keys for standing up for what they believe in and protecting their art. I have no tolerance for outright theft, especially when the companies involved have ample resources to put licenses and permissions in place.

Case 3 - Developments in Eminem (FTP) v. Universal Royalty Case

     For those of you who are not aware of this case (if you're in the industry you should be) then here are the most basic and general points in a long and technical case. FTP productions is the company that originally signed Eminem and they have taken Universal/Aftermath to court over contract language that deals with percentages of revenue regarding sales and licenses of songs online. There is large money at stake and many other artists have taken notice, are watching closely, and others have already similarly filed against their respective handlers/labels. (Gardner, 2012) FTP argues that a digital sale is a "license" and as such should carry a 50/50 split instead of the mere 12% earned on sales of physical product(s). (Gardner, 2012)

     Beyond this, many other technical details such as container fees have been disputed that UMG has wrongfully applied to digital sales though there is no packaging to speak of. Elements of this case was passed to the 9th circuit for a final ruling as to whether or not digital sales qualify as licenses instead of sales and the 9th circuit agreed that digital sales should be considered licenses. (A.P., 2010) With this clarification both side have headed back to court where the judge has essentially accused UMG of intentional dishonesty and trying to "fool" the court. (Gardner, 2012)

     Further, the judge has allowed FTP to amend their original complaints against UMG to include details that UMG has not only been paying 12% where they know they should be paying 50%, but that the revenues from which these percentages are taken have been routed through foreign subsidiaries so that only 29% of the original dollar amount is left. This forces FTP to take 12%-50% of 29% instead of 29% of the "whole pie." UMG argues that they have already reached a summary judgment on the words "our net receipts" in a prior hearing and that the word "our" is to apply to Aftermath. (Gardner, 2012)

     UMG says since this summary judgment is "clear" that FTP knew they were only getting a percentage of what made it to Aftermath and that FTP should not be able to raise this question or be granted an option to amend. In my opinion UMG is desperately grasping at straws in an attempt to avoid having to pay out millions of dollars they know they kept wrongfully, and that's even if one only wants to consider the "container charges" being taken from digital sales. I am glad that in this case there is a judge who not only sees straight through UMG and the tactics taken, but that he also takes personally being lied to and used as a tool to cover up lies to other people, not to mention there is theft involved here. I look forward to a final judgment, and hope beyond hope that all involved get exactly what is coming to them.